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[2015] ZALCJHB 72
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Portapa (Pty) Ltd t/a Supabets v Commission for Conciliation, Mediation and Arbitration and Others (JR1537/11) [2015] ZALCJHB 72 (4 March 2015)
REPUBLIC
OF SOUTH AFRICA
The
labour Court of South Africa,
in Johannesburg
Case
no: JR 1537/11
DATE:
04 MARCH 2015
Not
Reportable
In
the matter between:
Portapa
(Pty) Ltd T/A
Supabets
.....................................................................................
First
Applicant
And
Commission
for Conciliation, Mediation And
Arbitration
.......................................
First
Respondent
Commissioner
adv Thabang Serero
(N.O.)
............................................................
Second
Respondent
Elspeth
Mutize
.............................................................................................................
Third
Respondent
Judgment on
Application for Leave to Appeal
LAGRANGE,
J
Introduction
[1]
The citation of the parties in this
application is the same as it was in the review application.
[2]
On 08 December 2014, the following order
was made when judgement in this matter was handed down:
2.1
The default judgment of this Court on 16
April 2013 dismissing the application to rescind the judgment
dismissing the review application
handed down on 9 May 2012 is
rescinded.
2.2
On reconsideration of the application to
rescind the default judgment in the review application, handed down
on 9 May 2012, that
judgment is also rescinded including the order
making the arbitration award in case number GAJB3266-11, dated 15
March 2011, an
order of Court, which was made consequent to the
dismissal of the review application.
2.3
On re-consideration of the review
application of the rescission ruling of the second respondent issued
on 6 June 2011 in case number
GAJB3266-11, and the application to
make the award an order of Court, the review application is dismissed
and the award is once
again made an order of Court.
2.4
The applicant must pay the third
respondents costs incurred in opposing the review application, but
not the costs incurred in opposing
the rescission applications heard
on 16 April 2013 and 24 October 2013.”
[3]
The applicant now applies for leave to
appeal against the court’s dismissal of the original review
application it brought.
[4]
The fundamental reason for the review
application been dismissed is that the applicant did not set out a
competent ground of review
in the founding affidavit nor did it
rectify the deficiency in its supplementary affidavit.
Grounds
of appeal
[5] The
applicant’s grounds of appeal as set out in its written
submissions dated 18 December 2014 are:
5.1 The Court
ought to have found that the arbitrator’s decision to refuse
the rescission application was unreasonable, and
5.2 The Court did
not consider the legal points ‘that were evident from the
papers notwithstanding that they had not been
raised in the
applicant’s founding affidavit’.
Evaluation
[6]
In its submissions the applicant confined
itself to the following argument:
6.1
The point of law that was plainly evident
from the papers was that the arbitrator’s rescission ruling
should have been reviewed
because the arbitrator failed to convene a
hearing to consider oral argument during which the disputed authority
of the contracted
HR Manager (‘Paddock’) to launch the
application could have been addressed. This amounted to a gross
irregularity.
6.2
There was no rational basis on the papers
for the arbitrator to doubt that the applicant had authorised Paddock
to act on its behalf
given that it had an order of compensation
amounting to R 72,000 against it. The failure to file a resolution
confirming the Paddock’s
authority was not fatal to the claim
of proper authorisation.
Evaluation
[7] It is true
that during the review proceedings the applicant argued that a reason
why the ruling should be set aside is that
it was a gross
irregularity on the part of the arbitrator not to enroll the
rescission application for an oral hearing. It is also
true this was
a legal issue. Nonetheless it was a ground of review and ought to
have been set out in the applicant’s founding
papers and not
simply raised in argument. While it may be so that a jurisdictional
question, which a Court itself may even raise
mero motu
, can
be raised at the hearing of a matter even if not prefaced in a
party’s founding papers, this ground of review based
on an
alleged gross irregularity should have been pleaded as a ground of
review in the applicant’s founding papers or, with
the leave of
the Court, by filing a supplementary affidavit supplementing its
grounds of review.
[8]
The
judgments relied on by the applicant to suggest the Court has some
kind of overriding discretion to intervene by considering
other
non-pleaded grounds of review if flaws in the arbitration process or
the award come to its attention were either decided
before the LAC
decision in
Comtech
(Pty) Ltd v Commissioner Shaun Molony N.O
.
and others
[1]
,
or the judges in those matters were clearly unaware of the LAC. I
note that the applicant simply ignores this decision in its
submissions even though it was prominently raised in my judgment
preferring to rely on judgments of the Labour Court which it believes
support its argument. The authority of the LAC judgment remains
binding.
[9] In light of
the above, I do not believe there is a reasonable prospect that
another Court would come to a different conclusion
and the
application for leave to appeal should be dismissed.
Late
filing of submissions on leave to appeal
[10] I accept the
grounds advanced for the late filing of the applicant’s
submissions on leave to appeal and noting that its
application for
condonation is not opposed, the late filing of its submissions should
be condoned.
Order
[11] Accordingly
it is ordered that:
11.1 the
applicant’s late filing of its submissions in support of its
application for leave to appeal is condoned, and
11.2 the
application for leave to appeal is dismissed with costs.
R LAGRANGE, J
JUDGE OF THE
LABOUR COURT
(In chambers)
4 March 2015
[1]
[2007] ZALAC 35
(DA 12/05) (21 December 2007)